19 March 2020

Whilst there is today, thankfully, greater public awareness and discussion generally about mental health, a stigma still remains when it comes to conversations about mental health in the workplace. The recent tragic death of a young television presenter has reignited a rumbling discussion in the media about the duty of care owed by an employer to an employee in the most unlikely of workplaces – reality television.

The most recent HSE statistics from October 2019 show that the majority of working days lost between 2018 and 2019 (54%) were not due to accidents in the workplace, but rather due to stress, depression or anxiety, costing the UK economy £5 billion. Beyond the economic benefits of a healthy workforce, employers have duties under the Health and Safety at Work Act 1974 to protect the health, safety and welfare of their employees - that includes their mental health.

Whilst fake tan and bikinis may be very far from the vast majority of workplaces, mental health issues can impact any employee whether they work in a factory, office or farm.

What should an employer do?

The HSE's Management Standards propose a step-by-step risk assessment based approach focused on promoting open discussion with employees to improve provision for monitoring and response to employees’ wellbeing. The Management Standards cover six key areas of work design that, if not properly managed, are associated with poor health, lower productivity and increased accident and sickness absence rates, namely:

• ‘Demands’ - including workload, work patterns and the work environment;
• ‘Control’ - how much say the person has in the way they do their work;
• ‘Support’ - including encouragement and resources provided by the organisation;
• ‘Relationships’ – promotion of positive working and dealing with unacceptable behaviour;
• ‘Role’ - whether people understand their role within the organisation; and
• ‘Change’ - how organisational change (large or small) is managed and communicated.

The HSE has issued Guidance for Line Managers which encourages a practical approach. It focusses on using procedures that may already exist in many workplaces to stay up to date with any changes in behaviour or performance that might indicate an issue with mental health.

Routine and ongoing management, including scheduled meetings, appraisals or informal chats about progress can ensure managers are tuned into any issues staff may be going through. Most people who have ongoing mental health problems continue to work successfully, but when someone needs support, managers can work with them to ensure flexibility to suit their health needs beyond routine or scheduled check-ins.

People with mental health issues should be treated in exactly the same way as any other member of staff unless they ask for help or demonstrate clear signs that they need it. If an employee has been unwell, small, relatively inexpensive adjustments to working arrangements, such as cutting down workload or accommodating breaks in certain circumstances may well prevent a more costly period of illness. Employers may also consider the use of Advance Statements, which are written documents for the employee’s file explaining how they wish to be treated if they become unwell, including practical arrangements and contact details.

Enforcement – Workplace Stress as Injury

In September 2019, the HSE issued enforcement criteria stating that they may investigate if there is evidence of “a number of staff… experiencing work-related stress or stress related ill health”. It is clear that the HSE wants to make duty holders aware that patterns suggesting a poor management of mental health could result in an investigation and enforcement action, including prosecution and unlimited fines. There is also the parallel potential for civil claims to be made for workplace stress.

Duty holders who work in high pressure/high performance workplaces with high workloads will be the most likely sources of multiple reports of workplace stress; NHS Trusts, law firms and accountancy practices could be the most vulnerable. The current acceptance that certain jobs or professions carry a risk of stress or even ‘burnout’ will soon be resigned to the past. On a practical level, the link between poor mental health in the workplace and the potential civil and criminal consequences cannot be underestimated in today’s climate.

For more information arising out of the above please contact Lindsay MacNeill, Associate in our Regulatory and Criminal Defence team.

Contact: Lindsay MacNeil, Associate lmn@bto.co.uk T: 0141 221 8012